Rossi v. Darden developments - Part 1

  • Quote from Bob: “Thank you Mr. Lomax for the update. I have a couple of questions I would like "confirmed" or opinion of what the current status is:


    It is to my understanding that :


    1: Nothing has been entered into the Docket by Penon (or his…

    ......


    Thank you for taking time to reply. I have perused the documents but must admit, after a while I get a bit glassy eyed! I could not be a legal assistant having to type up those documents, for me it would be a bit mind numbing. But sometimes one has to dig deep and persist to find the nugget of gold, so I try.


    I appreciate your feedback to bounce my own understanding off of. I find it a bit like the "arguments" discussed about LENR, various tests or equipment. If a person takes a position where they try to find problems with their own understanding, opinion or belief, one can learn and become even more informed and knowledgeable. If one develops a position and refuses to test their position against honest criticism (not a bad term), then one can become untrainable and close minded. Doomed to live in a constricting shell of their own making.


    I have read various posts that there is no conspiracy to "bury" or inhibit LENR, that the field is doing this all by itself! Namely by the lack of cooperation or internal bickering over details. I partially believe this. I browse a couple of forums and their is much bickering and little collaboration! Too bad. :(


    I believe it was Mark Twain that responded when asked a particular question.... "I will be glad to give you the answer to your question.... I do not know!"

  • Well, I am a bit more cavalier than Abd, and will venture to say that if Penon refuses to show, the case unravels, and the judge tosses it out. Both of Rossi's main allegations: failure to pay the $89 million, and the patent allegation, hinge on the ERV's report being what Rossi claims it to be -a clear success as defined by the initial agreement with IH. Without that, the contract provision for final payment is not met, and there is no working technology to "transfer".


    If the architect of that report (Penon) refuses questioning/discovery, I just do not see how the case can proceed. Yes, I do not know the law very well, but it is not so crazy as to allow the key witness to purposely no-show, and then to proceed on as if nothing happened. This is from a legal website:


    "A witness's trial testimony helps a jury decide a defendant's guilt or innocence. However, sometimes a witness is unavailable to testify at trial. The general rule is that testimony can't be used unless the witness testifies in court because it's hearsay, which is evidence based on someone else's report rather than the witness's personal knowledge. Hearsay can be thought of as rumor. If an unavailable witness's statement can be used at trial depends on if it fits into one of the hearsay exceptions. A judge decides the unavailability of a witness and the admissibility of hearsay."


    Reading that leads me to think that Penon, possibly, may still be willing to make himself available, but maybe there are some legal maneuverings going on behind the scenes to make that happen. If not, the ERV report is hearsay, and inadmissible.

  • According to the wikipedia entry on US hearsay law, documents may be an exception. Wiki being the second cheapest lawyer I know, here is what it says.


    'Business records (hearsay) exception: business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the records are introduced into evidence. Depending on which jurisdiction the case is in, either the records custodian or someone with knowledge of the records must lay a foundation for the records, however.'


    From this I suspect that either party could actually get the Penon record thrown out if the opposing party said it was not a reliable record....that assumes it is acceptable as a 'business record' anyway.


    But either way, I suspect you are right. No Penon, no record.

  • New Order regarding interrogatories entered.


    Yes. Document 70 was a hearing request, with the IH responses to interrogatories attached. This Magistrate order covers objections in three of the interrogatory repspnses, the fourth, regarding Vaughn, is not mentioned.


    It starts with the general objections, then proceeds to question or request-specific objections. The Rossi documents are not text pdf, so at this point, it would be tedious to retype them. However, I will briefly summarize. Do remember that the interrogatories appear to precede the Protection Order, so IH might still invoke protection with answers, either for maintaining general confidentiality, or "Attorney Eyes Only," which would keep the answer away from Rossi, but his attorney may see it. Recall that attorneys are officers of the court.


    With reference to Document 70-1,


    Quote

    General Objections l and 2 are overruled and stricken. (Tr. 10:5-6)


    1. sought protection under attorney-client privilege and work product privilege.
    2. sought to protect third-party privacy. This specifically mentions a protection order to be sought, so this was essentially obsolete.


    Quote

    General Objection 3 is sustained in that Defendant shall provide a privilege log pursuant to the Federal Rules of Civil Procedure and the Iocal rules of the Court. (Tr.10:8-l 0


    3. Technical details per rules and Instructions and Definitions apparently provided by Rossi with the Interrogatories. We do not have these.


    Quote

    General Objection 4 - the first sentence is stricken, and the second sentence is sustained. (Tr. 14:13-21 )


    Quote

    Industrial Heat objects to Rossi's Interrogatories to the extent that words or phrases used by Rossi in his Definitions, Instructions, and Interrogatories are vague, ambiguous, undefined, and/or subject to multiple interpretations. Industrial Heat will respond to such interrogatories according to its understanding of the ordinary meaning of such words and phrases.


    The proofreader in me notices that striking the first sentence leaves "such" without referent. However, the Magistrate's intention appears clear. If Rossi's "definitions, instructions, and interrogatories" are not clear, following some reasonable interpretation chosen by IH, too bad for Rossi. Next time ask for what you want, plainly and simply and clearly.


    Quote

    General Objection 5 is overruled, in that to the extent that Defendant is aware of documents that are missing or have been destroyed, Defendant shall identify such documents. Defendant is under no obligation to conduct a separate search for m issing or destroyed documents. (Tr. 12: 14-21


    This appears to be an error. General Objection 5 is about "E-Cat IP." It is handled in the next order.


    Quote

    General Objection 5 is sustained, in that the definition of "the E-Cat lP'' shall be limited to how that term is defined in the parties' License Agreement (Tr. 19: 1 1-1 5)


    5. IH objected to the definition of "the E-Cat IP" as provided by Rossi as being broader than what was in the License Agreement. (Which is Exhibit B for Document 1 in the case documents.)


    Quote

    General Objection 6 is sustained. (Tr. 20:2-5)


    6. Noted that there are terms in the Definitions that are not used in the interrogatories. IH reserved the right to object to those in the future. IH noted that the Doral address was referred to as the "testing facility," and states that they will respond to "testing facility" as referring to that address without thereby accepting the characterization.


    (This, of course, refers to a core issue in the case. The Doral facility was not presented, prior to the setup there, as a testing facility, but as a customer manufacturing plant needing a power installation. There are a series of terms used and applied in the Rossi Complaint that are like this. When the case was initially filed, most observers simple accepted the characterizations as fact. It took me a while to see through it, from reading the Agreement and the Second Amendment. Rossi said this was a Guaranteed Performance Test, but what was required to set one up was not alleged as having been followed, it was as if the issue did not exist. Nor did Annesser claim estoppel, which would have been the proper move if a signed document was missing but there had been clear acceptance.)


    Quote

    General Objection 7 is limited in that Defendant's responses are to include persons or entities for whom the Defendant knows are acting or purporting to act on its behalf. (Tr. 21 : 7-10)


    7. Objected to a requirement on the face to include those "purporting to act" for the Defendant; the Magistrate has asked them to answer according to its knowledge.


    Quote

    lnterrogatory No. l - Defendant will provide answers so as to identify those persons, excluding legal counsel, who contributed to answering interrogatories 1 , 2, 3, 4, 7, 8, 9 and 10. (Tr. 22: 17-21


    Under Interrogatory No. 1, IH objected to providing detailed information about counsel, so the order excluded counsel. They provided information about who contributed to interrogatories 5, 6, and 11-15, as an answer to Interrogatory 1. It should be easy for them to handle 2 (who made up that list?), but as to 3, and 4, IH did not answer, presumably on advice of counsel. This was not addressed in the Order, so the inclusion of those in the Order is odd. However, I assume IH will simply answer that way. "This was on advice of counsel." Presumably the responsible IH officer would be Vaughn.


    7 was a simple answer, probably provided by Vaughn (and it's public knowledge and already filed in the case) and there was refusal to answer some aspects of this question, particularly about the ownership of Cherokee. 8 was about all attempts to replicate or test E-Cat products, and IH promised to deliver that. 9, again, while objecting to a possibly overbroad question, promised to deliver documents and information regarding them. 10 the same.


    As I interpret the Order, it simply asks IH to specify who provided the information in a response.


    It appears that IH was not ordered to provide information about Cherokee, for example. However, I have not examined the rest of the order yet, which relates to 70-2 and 70-3. There appears to be no order relating to the Vaughn objections, in 70-4.


    The next part gets a little juicy.

  • Abd,


    I think at times the EMDrive is easier to understand than this legal stuff. Kudo's to you for trying to simplify. So how long do we have to wait for "this next part that will be juicy"?


    Eric has been a little lazy lately in providing us cheapskates with our freebie updates. He should remember that old saying about "biting the hand that feeds you". :)

  • I think at times the EMDrive is easier to understand than this legal stuff. Kudo's to you for trying to simplify. So how long do we have to wait for "this next part that will be juicy"?


    Well, you could read the document now. See below.


    Quote

    Eric has been a little lazy lately in providing us cheapskates with our freebie updates. He should remember that old saying about "biting the hand that feeds you".


    One incident does not create a pattern. He has often "scooped me." It's all about when we have time. Never insult free and useful labor, even if it is not always what you want, when you want it. Unless you are paying for it. Send us a nice donation for this work, and if we accept it, you get to complain. As matters stand, nobody is feeding us for doing this, except "thanks" is nice.


    (And I learn a ton.)


    If you believe we are "paid FUD" from "the IH Empire," then complain to them. Maybe they would fire us for being lazy, as well as for all the stuff we write that is "off-message."


    It's hard to find good help.


    Okay, how to see all the case files on newvortex. Go to https://groups.yahoo.com/newvortex/info and follow instructions to join the mailing list. While you can join with only an email address and verification, to access the web features (such as the file space), you will need an associated yahoo account and be logged into it. If you have any difficulties, you can message me here, I'll get that as an email.


    The file space is https://groups.yahoo.com/neo/g…tex/files/Rossi_v_Darden/


    While you could set your user options for "web only," I recommend against it. There is not much traffic on newvortex, most of it lately has been file upload notifications, so every time I upload a Rossi v. Darden file, you will get an email notification. Heh! Sifferkolll subscribed, subscription is open. I will not know any personal data for subscribers other than what they show with a yahoo account. However, if you send a message to the list, it's an email and will have normal headers, and every subscriber will get it. All new subscribers are moderated. As soon as someone shows they are not a spammer with a relevant message, I approve them for free posting, unmoderated, and only have then later moderated a user (only one in many years) because of using the list to attack other members, without necessity.


    I do sometimes use the list, more or less, as a LENR blog. I am not the only moderator.


    The newvortex filespace linked above displays notes that make it easier to see what a file is about. There is a button in the yahoo access (under "Actions") that allows sorting the files alphabetically, and that will display all the files in the document order, I created the file names to make that work. (Otherwise the yahoo default sort is by upload time.)

  • Eric has been a little lazy lately in providing us cheapskates with our freebie updates. He should remember that old saying about "biting the hand that feeds you".


    My apologies. The US election took up all of my attention, and I momentarily lost track of what else was going on. The new documents are now available on Google Drive:

    • 73 - Opposition to third-party motion
    • 74 - Order on informal discovery conference

    (As usual, the document titles are not exact.)

  • Document 75.0 has been uploaded to PACER. It is a notice of a hearing requested by IH, over a Rossi response and objection to IH request for production, document 75.1.


    The hearing is scheduled before the Magistrate, December 6, 2016 at 2 PM.


    Aside from some general objections, this stands out in Document 75.1:


    Quote

    3. Defendants’ Instruction No. 9: Plaintiffs object to the time period set forth in Instruction No. 9 on the grounds that any video, photographs, or other responsive documents and/or information which was “created, recorded or fixed in a tangible medium of expression” after the conclusion of the Guaranteed Performance Test is not likely to lead to the discovery of admissible evidence. All of the matters and issues raised by the parties take place before and/or at the conclusion of the Guaranteed Performance Test in February 2016. Accordingly, any photographs and/or recordings taken after that time would be completely irrelevant and impertinent to the instant case, nor could it lead to the discovery of relevant or admissible evidence as the matters complained of had already concluded.


    (We do not have the instructions.)


    Personally, I can imagine how later photography of the Doral Plant could be relevant. In particular, there are issues about the layout of the "customer area" and ventilation of same. Was there removal of "customer equipment"? Yes, that might be protected under some privilege, but ... was there continued surveillance video? Was there removal of evidence that may have been described by Murray? In any case, IH will, I'm sure, advocate for what they need. This was the production request and the specific Rossi response to it.


    Quote

    Request No. 1: All videos, photographs or other recordings of visual images (regardless of the medium on which the recording is stored) created, recorded or fixed in a tangible medium of expression on or after January 2, 1015, of (a) the Doral Location (either of the inside or outside of the Doral Location), (b) some or all of the contents of the Doral Location, (c) any individuals inside the Doral Location, or (d) events or activities occurring at the Doral Location. This Request includes, but is not limited to, all of the “movies” and “photos” referenced by Andrea Rossi in his blog posting of May 1, 2016, a copy of which is attached as Exhibit A.

    Answer: Subject to Plaintiffs objections to the instructions above, Plaintiffs shall make the responsive, non-privileged, documents and/or information available for inspection and copying at the office of the undersigned counsel within fifteen (15) days of the date of this Response. In the alternative, the undersigned counsel will confer with counsel for Defendants and will coordinate to have copies of such responsive documents/information made for Defendants at Defendants’ expense.


    My personal reaction: I would look at this objection and think, "He's hiding something." If there is any possible relevance, I expect the Magistrate will overrule the objection. I looked up the blog post (since we don't have the Exhibit). My emphasis:



    We now know that IH objected to the "GTP and the "ERV," December 4, 2015, from a letter covered in Rossi Request No. 30 in Document 70.3:


    Quote

    REQUEST NO. 30: Any and all documents which support and/or pertain to your claim that “Neither IPH nor IH ‘engaged’ Mr. Penon to serve as the ERV for the Guaranteed Performance process, which is a requirement under Section 5.”, (sic) as stated in the letter of December 4, 2015, which has been attached hereto as Exhibit “A”.

    REQUEST NO. 31: Any and all documents which support your position that “The project on which Leonardo is currently working cannot be the Guaranteed Performance process set forth in the Agreement”, as stated in the letter dated December 4, 2015 attached hereto as Exhibit “A”.

  • Document 76 is a ruling by the Judge, rejecting the Rossi arguments in his Motion to Dismiss the Countercomplaint.


    The judge recites the history of the dispute, as she did in accepting four of the Rossi eight counts (and rejecting the other four). These histories each tell the story from the point of view of the plaintiff, assuming that all allegations are true. She is not determining the fact of the allegations, only the legal implications. A Motion to Dismiss is only on points of law: if all the alleged facts are true, and still there is no basis for a claim, it must be dismissed. Otherwise, it stands.


    The judge allowed all IH claims to stand. At one point, she accepts an argument, but only as to a certain redundancy and did not decide to act on it.


    Rossi had moved to dismiss three counts in his final plea in the MTD, but actually argued on four counts. The Judge rejected the motion with respect to all.


    As I recall, that is what I predicted.


    At this point, then, Rossi has, if I am correct, two weeks to Answer the countercomplaint. He has now been buried by piles of paper (or a huge number of files), as a result of his copious requests fro production. Maybe he will find a Wabbit in there.

  • I have claimed here and on e-catworld that if the magistrate is silent on an objection raised by a party to an interrogatory or request for production served, the objection stands, at least pending further resolution. This was just posted on e-catworld. Because there is a legal issue here of possible concern and importance, I'm examining this here.


    http://www.e-catworld.com/2016…age-1/#comment-3004772019


    Fascinating. Yes, a magistrate is a kind of judge, but I did not write that he was not a Judge, but that he is not the Judge. This is Federal District Court, and judges are appointed for life. Judges appoint Magistrates to help with the work load. The authority of Magistrates is limited. It's a small point, but what I wrote was correct, and Ged was wasting space with confusion.


    Now to what is more significant. Above, I linked to specific coverage, from a Rossi request for production, document 70.3. Was this "wrong on all points"? Wow! I don't usually manage to reach that level. If I do, what an opportunity to learn a lot!


    So, first, did I miss something in the Order? Ged is referring to this, 75.0, which I also studied and used to develop my comments. End of page 3, the section covering 70.3.



    Ged seems to think that the last sentence above refers to all other requests. Rather, there is a general agreement to provide documents containing certain search terms. This was, as I mentioned, a drastic reduction from the original request.


    I would not read the Magistrate's decision too tightly. This was a brief hearing, and sometimes the language isn't exactly nailed down. As I wrote on e-catworld, the intention is clear and the attorneys will work it out. What I wrote in the linked comment still stands. Now, Ged also argues law, apparently claiming that if the Magistrate has not specifically confirmed an objection, the party is required to answer. I expect the opposite, that if the party has objected and the objection has not been overruled, the objection stands, and there is no requirement to answer, pending.


    Ge cites https://www.law.cornell.edu/rules/frcp/rule_33 (Rule 33). This only states, on point, that "Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath." (And there is a deadline of 30 days for objecting or answering.) If the party objects, it is then outside the scope of this rule. Hence:


    http://federalpracticemanual.org/chapter6/section2 is a Federal Practice Manual cited by Ged. It is lengthy and most of it is irrelevant. From it, however, I derive that a party which has duly objected to a request is not compelled to answer until ordered to do so by the Court, and in this case, the parties agreed to Magistrate jurisdiction over discovery issues. This does not allow frivolous objections, which may be sanctioned, just as a frivolous appeal of a legitimate objection could also be sanctioned. There is no sanction, as far as I can see, for asking a "frivolous question," though it if went too far, I wouldn't count on that!


    I don't notice the Court affirming any objections, per se, and I read this as happening because the objections stand unless overruled. Rather, the Court overrules some objections and partially overrules others, making specific orders where needed. The pleadings are not fully formal. I do not see arguments in the requests for hearings. There is an interrogatory or request, there are objections, so then there is an oral hearing. It is assumed that if a party doesn't wish to answer questions, they simply will not answer them until ordered to do so, provided they have duly objected. That formal objection is required, but that's all.


    There is no sign of an order compelling IH to answer other than the specific issues addressed. Because a number of different questions were asked, there is some overlap. For example, there is a general request for documents containing certain search terms. Request 8 covered "Any and all documents reflecting and/or pertaining to the relationship between IH and the persons/entities listed below ..." So, consider Joseph “Joe” Pike. There is no order affirming Request 8 is to be answered, but IH agreed to answer with respect to a shorter list. However, the final sentence affirms that documents related to a short list of search terms are to be provided. Ged has confused this with the general Request, number 8. IH objections to the general request stand, they were not overruled at all. They reduced the documents to contractual agreements between Industrial Heat and Andrea Rossi, IPH International, B.V., Thomas Darden, John “JT” Vaughn, Fulvio Fabiani or AmpEnergo, Inc.


    If a document connected with Joe Pike and containing the search terms, it would be covered. But not all documents relating Joe Pike and Industrial Heat.


    Of greatest note might be Robert Godes. The Request 8 mention of Robert Godes is under objection, and that stands. However, Godes is covered under Request 4: (from the Order:) "With respect to Barry West, Robert Godes and Brillouin Energy, Defendant will produce communications referencing E-cat, E-cat IP, Rossi, Leonardo and/or Guaranteed Performance (Tr. 71 :22- 72:4)." From 70.3, that request:


    Quote

    REQUEST NO. 4: All documents evidencing any communication(s) by and between you and any of the below-named individuals and/or entities, from January 1, 2011 through the date of production: [list of names]


    Again, the request was reduced, possibly drastically, from the original.


    Ged doesn't appear to know what he is talking about, and he's done this before. He makes unsupported claims, without providing specific evidence, and asserts them with great confidence and contempt for what I've written. I am not an attorney and I can make mistakes, but not generally quite this large!

  • Or is it the Rebels? Damn it! Where's my Program?


    Today the 3rd Party Defendants filed Document 77.0


    Quote

    THIRD-PARTY DEFENDANTS’ COMBINED REPLY TO COUNTER-PLAINTIFFS’ RESPONSE IN OPPOSITION TO THIRD-PARTY DEFENDANTS’ MOTION TO DISMISS COUNTS III, IV, AND V OF COUNTER-PLAINTIFFS’
    SECOND AMENDED COUNTERCLAIMS AND THIRD-PARTY CLAIMS


    Sorry about the shouting but I can't be arsed to do other than copy and paste from the document.


    So some explanation here, for others who also lost the Program. Industrial Heat et al, alleged as Nefarious Frauds and sued by Rossi et al, decided that Rossi's Nefarious Plan had been assisted by certain Nefarious characters, whom they countersued. Those characters, wanting not to be arsed to Answer this Countercomplaint, since they are surely blameless and IH is really dumb, filed a Motion to Dismiss (MTD).


    Be grateful, they originally filed together, so there would have been two or more of these thingies, but the judge insisted they Get It Together and save trees and her time. So they did file a joint Motion to Dismiss, as Document 69. Industrial Heat, not taking this lying down, but mobilizing their vast legal resources, filed their Opposition as Document 73, full of boring legal points, which can be summarized efficiently as "Wrong!"


    Now comes the intrepid Johnson, President of Leonardo Corporation and -- completely independent, mind you -- JM Products, Inc, Fulvio Fabiani, who surely didn't do anything but design the computer systems for the Doral plant and who merely forgot to turn his notes over to IH after being paid paltry sum by them, and James A. Bass, who apparently did nothing but smile and look like an engineering manager. Or did he actually engineer that plant or supervise it? -- and they are bearing yet more boring legal arguments, I expect. No attorney in his right mind would present this stuff to a jury and this is why federal judges are reasonably well-paid, they have to put up with it. If this were actually read in court, everyone would fall asleep and the malefactors would steal everyone's wallets and iPhones, and it would be a mess, which is why it is not allowed.


    Will we learn here what actually happened in Doral? No, not soon, other than what dribbles out. This is what will happen.


    You can see an examples of Orders in Document 24.0, the Judge's Order on the Industrial Heat MTD, where she dismissed 4 of 8 original Rossi Counts. In reading that, because she starts with a recital of the case history, Planet Rossi was cheering and proclaiming Victory, Sweet Victory, not realizing that in a Motion to Dismiss the Judge will assume that everything alleged is true, excepting only clear contradiction in the evidence presented by the plaintiff. That recital was to make sure she understood the complaint. She then considered legal arguments, and 4 out of 8 dismissals was very high, MTDs are supposedly quite difficult, because of those presumptions.


    Then Rossi's own MTD was dismissed a few days ago after arguments were presented, 4 for 4. Document 76. The entire IH countercomplaint against Rossi stands, and Rossi now has two weeks to Answer their counter-complaint, though he can ask for more time. Reading Document 76, remember that the Judge has stated the IH case, not her opinion, though in document 24 she provides a hint of what she might do in the future about this "Six Cylinder Unit" flap. Her response to the Rossi MTD also provides clues as to how she might address this one.


    The present document finishes up the pre-ruling argumentation, generally, so the Judge will, within a few weeks, rule, and then, unless the countercomplaints against them are entirely dismissed, these defendants will have two weeks to Answer. In those Answers we may, as the public, start to see some real information from the side other than IH.


    The argument in this Reply begins with:

    Quote

    Counter-Plaintiffs create a script to an exciting sci-fi drama in their Counterclaims and Third-Party Claims but otherwise fail to state a cause of action against Third-Party Defendants.


    OMG, they have forgotten where they are! They think they are in court, presenting their case to a jury. Before I read anything else, from the above, I'm prepared to see, as their response to the IH argument of "Yes, you did!", "No, we didn't! So there!" Or something like that.


    Were I the judge here, I would be holding onto my seat, trying desperately not to think, "Ah! So Stupid!" It is her job to avoid jumping to conclusions, "prejudgment." Sometimes a litigant is really dumb but actually right, and a litigant might have an awful attorney, and judges actually care about justice. Even for stupid people.


    Now, this is just my impression. I have not spent any time in Federal Court, just in lesser courts.


    Maybe there is some cogent argument following. Maybe. True skilled and clear legal argument is a joy. Will we see any?


    The core of one argument that I first see is that Fabiani, and even more Bass, were post-facto to any possible damage. This idea confines damage to the initial move, not to ongoing expenses. The connection with Bass is thinnest. However, the core of that "science fiction story" is that Bass participated in a scheme to make it appear that real power consumption was taking place, as did Johnson and Fabiani. This piece of business is remarkable:


    Quote

    The crux of the scheme alleged by Counter-Plaintiffs is to manipulate the Guaranteed Performance test, which required that the Plant operate at a certain level of efficiency or COP – meaning that the Plant had to generate a certain amount of energy over the energy consumed by the Plant. The amount of power being received and used by JMP is not related and does not allow the inference that the Plant is operating at the requisite COP, only that JMP is receiving the stated amount of energy. Furthermore, Bass’ representation that JMP was satisfied with the steam power being received has no bearing on the performance or efficiency of the Plant, which is what IH was to be testing. The allegedly false statements are in no way, shape, or form deceptive within the ambit of FDUTPA.


    I will short-circuit this, after noting that just about anyone familiar with the issues would recognize this argument as preposterous. However, this is a factual argument, which is not allowed in an MTD. Whether or not JMP's reported power is related to power production and the tort claims is an issue of fact, not of law. If anyone needs an explanation, ask, but this is clear.


    I predict that the MTD will fail, and, listen up! Once the MTD is out of the way, the counterclaim defendants are then fully subject to discovery as parties. I may comment further upon reading over the prior documents.

  • Thank you for the update, it is appreciated. Perhaps we will see some real evidence presented in the next few weeks other than this (although seemingly normal) legal posturing. While this has been an interesting drama, I am ready for it to come to a conclusion. A conclusion other than "another new design, another new customer, another new year of development"! :(


    Perhaps the guys at MFMP will hit the correct "notes" and cause a reactor to play "LENR music" in the near future. I applaud their efforts and their transparency. And who knows... as Mr. Lomax states.. "perhaps Rossi will pull a Wabbit"! :D (Not holding by breath though)

  • Thanks Abd, as always.


    Well I just read 77, and could only get through about half. Will read the rest tomorrow. Lots going on right now. Weird defense strategy on the part of Johnson, Fabiani and Bass. Well, maybe not so weird if you have no defense I guess.


    Simply put, they are trying to distance themselves from Rossi, and in particular that July 2014 meeting in NC where Rossi/Johnson said some things that are damning to their defense. They even admit in the very first sentence that they will not address that particular meeting. That tells you something. Sharp judge, and magistrate, so doubtful they will miss the significance.


    Then the third party defendants try and describe, however superficially, that Doral was the GPT. I almost get the impression they are trying to keep that in play as an option...just in case Rossi wins this thing, while they are poising to jump ship. Guess the ever so slight possibility of a big payday still weighs heavily on their minds, along with their lawyers? Waste of time IMO, but never hurts to try and have it both ways.


    After Johnson, Fabiani, Bass exhaust all legally reasonable options, and the dire consequences of their actions hits home, I suspect some, or all 3, will turn on Rossi to save themselves.

  • Shane wrote:

    Thanks Abd, as always. Well I just read 77, and could only get through about half. Will read the rest tomorrow. Lots going on right now. Weird defense strategy on the part of Johnson, Fabiani and Bass. Well, maybe not so weird if you have no defense I guess.Simply put, they are trying to distance themselves from Rossi, and in particular that July 2014 meeting in NC where Rossi/Johnson said some things that are damning to their defense. They even admit in the very first sentence that they will not address that particular meeting. That tells you something. Sharp judge, and magistrate, so doubtful they will miss the significance.Then the third party defendants try and describe, however superficially, that Doral was the GPT. I almost get the impression they are trying to keep that in play as an option...just in case Rossi wins this thing, while they are poising to jump ship. Guess the ever so slight possibility of a big payday still weighs heavily on their minds, along with their lawyers? Waste of time IMO, but never hurts to try and have it both ways.After Johnson, Fabiani, Bass exhaust all legally reasonable options, and the dire consequences of their actions hits home, I suspect some, or all 3, will turn on Rossi to save themselves.


    Shane I think you are spot on here. The matter of their respective culpability is fascinating, and not one that can be easily resolved from the outside, though guessing is cheap. Rossi has (do we believe?) his funding from elsewhere so I guess will survive this debacle. It will be a very long time (probably never) before there is any evidence of his culpabilities strong enough to dislodge the pro-Rossi memes floating around - and that is all he needs, a meme or two...

  • This document further convinces me that everyone on "team Rossi" is abiding by an overall strategy to wait until the very end of the whole process to reveal their "wabbits." Literally, I think they want to have (completely figuratively speaking and not literally) the noose being made and on the way to the gallows before dropping evidence refuting at least some of IH's most harsh accusations: such as no customer, no manufacturing process, no connection to Johnson Matthey, no excess heat, no real "work" for James A. Bass to perform (because he was performing the job of an actor), etc. I'm not sure how large or significant their "wabbit" will be, but they are obviously intentionally keeping him in a cage somewhere, locked away.


    I can only hope that they are using this time to feed him lots of carrots.

  • This document further convinces me that everyone on "team Rossi" is abiding by an overall strategy to wait until the very end of the whole process to reveal their "wabbits." Literally, I think they want to have (completely figuratively speaking and not literally) the noose being made and on the way to the gallows before dropping evidence refuting at least some of IH's most harsh accusations


    Why would they do that? This is costing them a great deal of money, and surely it must worry them and their families. If they can make the case go away by revealing information, why don't they do that now?


    What you say makes no sense. People do not subject themselves to large expenses and the danger of losing millions of dollars for no reason, when they can easily put a stop to it. Why on earth do you think they would do this?

  • MrSS,


    If Rossi/Penon have a wabbit to pull out of their hat, they better do it soon. :) After reading all of document 77, I get the impression that the Third Party defendants (Johnson/Fabiani/Bass) are stalling for time to see if there is such a wabbit also. By the looks of it, they need it. If no such creature emerges, they will throw Rossi under the bus probably...as they have positioned themselves to do in 77.


    Two days ago Rossi said this on his JONP:


    Andrea Rossi
    November 17, 2016 at 8:02 AM
    Mario Lemieux:
    I cannot talk of issues related to the litigation, but I can say that we have collected solid evidence that all we say is the truth, therefore I am satisfied of how things are going on.
    Warm Regards,
    A.R.


    So he is claiming here to have that wabbit. We shall see.


    BTW, did you read the court's, or Judges, well written, and reasoned, response on the case in Document 76? Abd wrote of it, but worth the read anyways. Anyone here still confused about Rossi vs IH, IH vs Rossi, should give it 30 minutes, and they will be up on everything they need to know. Reduces the legal issues down to the bare, understandable, essentials.

  • I think that they haven't pulled a Wabbit out of the hat is because all they have is a hat full of Wabbit droppings.
    I would expect at least they would produce and document something that actually said that the GPT was agreed to or
    that a time extension for starting such a test was agreed to.


    Just that one thing would drastically change the trajectory of the case and then the focus could be on data collection,
    if it true worked or not, the reality of customer and proof of consumption of the levels claimed and so on.


    And then I will be interesting when the open up that shipping container for discovery. My guess is that it has a lot of
    Wabbit droppings on the floor but no Wabbits.